Henderson & Rainer v. Murphree

HARALSON, J. — The plaintiff held his mortgage subject to the one given to French & Ramage. Whenever their mortgage became satisfied, Avithout resort by them to the mortgaged property, the property became liable to the satisfaction of plaintiff’s mortgage, without interference by the older one. If it had taken the property to satisfy the senior, the junior mortgagee would have suffered no damage. When, however, the mortgagor paid and satisfied the senior mortgage, out of funds independent of the mortgaged property, and not arising therefrom, this mortgage Avas SAvept away, so far as. the junior mortgagee Avas concerned, and as between the mortgagor and the plaintiff, — the junior mortgagee — the second mortgage stood as' though no prior mortgage had ever been executed to French & Ramage. The payment of this older mortgage Avas not made by the defendants, but by Mrs. Copelancl, the mortgagor, in discharge of that mortgage, the defendants having no connection Avitli the payment and discharge of the same. This older mortgage AAras never transferred or assigned to them, by the mortgagees therein, and they did not acquire by virtue of its payment by Mrs. Copeland, any right or lien on the property mortgaged. There Avas no outstanding title in French & Ramage, [225] with which defendants connected themselves, which could give them a right to defend against plaintiff's mortgage. As against him, they occupied the same legal, attitude, as lias been stated, that they would have occupied had said prior mortgage never been given. “By our settled rulings, a mortgage conveys the legal estate, and operates a transfer of the right of possession; and the mortgagee may (in the case of land), enter, and recover in ejectment (or in the case of personal property recover in trespass or trover) unless by express stipulation, or inconsistent reservation, or reasonable implication arising from expressed conditions, the mortgagee’s right to possession is postponed until default, or some future time.’’ — Oliver v. Ala. G. L. Ins. Co. 82 Ala. 417, 427; Robinson v. Marks, 82 Ala. 69; Heflin v. Seay, 78 Ala. 180. There, were no such reservation or conditions, but the very contrary appears, in the mortgage to plaintiff in this case. Tins mortgage, we hold conveyed to plaintiff and vested in him a title on which he could maintain trover against any one except French & Jtamage, the. holders of the. first mortgage and those claiming in their right, if it had remained up-satisfied. — Robinson v. Marks, supra. Affirmed.